NDIA Accountability Project

Concerns over ban on NDIS funding for sexual services

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Submission 251

Lawyers

sii“ Ir];

Community Affairs Legislation Committee, Senate Standing Committees on Community Affairs

26 July 2024

To Senator Urquhart and Members of the Community Affairs Legislation Committee,

            NATIONAL DISABILITY INSURANCE SCHEME AMENDMENT
            (GETTING THE NDIS BACK ON TRACK NO. 1) BILL 2024 (CTH)

I am writing to you as National President of the Australian Lawyers Alliance (ALA). The ALA is a

national association of lawyers, academics and other professionals dedicated to protecting and

promoting justice, freedom, and equality before the law for all individuals.

We estimate that our 1,500 members represent up to 200,000 people each year in Australia, including National Disability Insurance Scheme (NDIS) participants living with disabilities of all types.

The ALA is represented in every state and territory in Australia. Our office is located on the land of the Gadigal people of the Eora Nation.

The ALA has had an opportunity to review the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Bill 2024 (Cth) (‘Bill’), which has been referred to this Committee for inquiry.

In our submission dated 22 May 2024 (enclosed) to this Committee’s earlier inquiry on this Bill, the ALA expressed our strong support for substantial legislative reform in order to guarantee appropriate outcomes for all NDIS participants and the ongoing sustainability of the NDIS.

Since then, ALA members have been deeply concerned by some of the messaging and rhetoric around NDIS reforms, especially the announcement that NDIS participants will not be able to use NDIS funding to access specialised sexual services. We note that NDIS Minister the Hon. Bill Shorten has publicly confirmed, in response to a question specifically about sex worker services during a Sky

News interview, that the Federal Government will move to ban those services from being accessed

with NDS funding.

This proposed ban defies both international law and academic research, which consider sexual health as a basic human right – including for those living with a disability – and, moreover, a right deserving of support from governments and broader society.

This proposed ban also defies domestic jurisprudence. The ALA notes that the Federal Court of Australia has already determined unanimously that “participation in sexual activity” (for example, accessing sexual therapy services) is a “reasonable and necessary support” for the purposes of NDIS funding; is not expressly excluded under the National Disability Insurance Scheme Act 2013 (Cth) (‘NDIS Act’) or under the NDIS Rules; and is actually in direct alignment with “the values, objectives, purposes and guiding principles” of the NDIS.

Additionally, the ALA questions whether this ban will have any impact on the sustainability of the NDIS, which we understand is a key priority of the Federal Government. While the NDIA has not shared how many NDIS participants have ever used NDIS funding for sex work services, Minister Shorten has recently revealed that none of the 228 requests for that kind of funding were approved in the year to the end of April 2024. It is, therefore, very unclear to the ALA what savings (if any) will come from banning NDS funding for sexual services.

In the meantime, public and media attention is focused on the vilification of NDIS participants and their recognised human rights. Instead, ALA members believe that the focus on NDIS reforms must be directed at refining and progressing this Bill before the next Federal Election.

Even with the amendments that were made to the Bill in the House of Representatives, the ALA

remains concerned about many provisions in this Bill in its current form. It is, we submit, in the best

interests of the NDIS and all NDIS participants across Australia that further amendments are made.

We refer the Committee to our May 2024 submission, in which we have recommended that: - clarification be sought from the Federal Government by this Committee regarding the new definition of “NDIS support” proposed by this Bill;5 - any new criteria against which NDIS participants will be judged (for example, whether a participant remains eligible for support through the NDIS) and any new powers being afforded to the Minister or to the NDIA must all be fully described in the NDIS Act, instead of being articulated in the NDIS Rules away from the proper scrutiny that the legislative process entails;6 - clarification be sought from the Federal Government by this Committee that, under proposed amendments to section 28(2) of the NDIS Act, NDIS participants who enter the NDIS through early intervention requirements will not be treated differently to those who qualify for the NDIS through the disability requirements;7 - the additions of proposed sections 32K and 32L to the NDIS Act be reviewed closely to ensure that funding entitlements will not, as a result, be restricted for NDIS participants and/or that NDIS participants will not be able to seek review of funding decisions;8 and - clarification be sought from the Federal Government by this Committee regarding the measures proposed in the Bill to address and prevent fraud and other criminal conduct within the NDIS, including to ensure that no new powers afforded to the NDIA will result in the NDIS not being accessible to eligible or existing NDIS participants.9

We urge the Committee to recommend that the Federal Government amends this Bill to address the concerns and issues raised in the ALA’s May 2024 submission.

Whistleblower Protections within the NDIS

The ALA has had the opportunity to review the Human Rights Law Centre’s submission dated 31 May

2024 to this Committee.

The focus of the Human Rights Law Centre’s submission is the deficiencies in the NDIS Act in relation

to whistleblower protections. The ALA agrees with the Human Rights Law Centre that

comprehensive protections for whistleblowers who disclose information about the NDIS (including

any misconduct or fraud) are essential to support those whistleblowers, to keep them safe, and to

prevent reprisals.

The ALA endorses the Human Rights Law Centre’s recommendations outlined in their submission

for amendments needed to the NDIS Act. We encourage the Committee to recommend that the

Federal Government address and greatly improving whistleblower protections as part of ongoing

reforms to the NDIS.

Summary

The ALA is grateful to the Community Affairs Legislation Committee for considering the

recommendations we have made in this correspondence and in our enclosed submission, all of

which are aimed at ensuring fair outcomes for all NDIS participants and the ongoing sustainability of

the NDIS. ALA members are available to provide further assistance to the Committee on the issues

raised by the ALA and the recommendations we have made.

Yours sincerely,

Michelle James National President, Australian Lawyers Alliance Enclosed:

  • Australian Lawyers Alliance, Submission to the Community Affairs Legislation Committee, Senate, Parliament of Australia, National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Bill 2024 (Cth) (22 May 2024) <www.lawyersalliance.com.au/documents/item/2726>.

Submission 251

Lawyers

sii" Ir];

National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Bill 2024 (Cth)

Submission to the Community Affairs Legislation Committee, Senate, Parliament of Australia

22 May 2024

Level 7, 321 Kent Street, Sydney NSW 2000 | GPO Box 7052, Sydney NSW 2001 | ABN 96 086 880 499 T +61 2 (02) 9258 7700 | E enquiries@lawyersalliance.com.au | W www.lawyersalliance.com.au Protecting and promoting Justice, freedom and the rights of the individual.

Contents

Who we are

The Australian Lawyers Alliance (ALA) is a national association of lawyers, academics and other

professionals dedicated to protecting and promoting justice, freedom and the rights of the individual.

We estimate that our 1,500 members represent up to 200,000 people each year in Australia. We

promote access to justice and equality before the law for all individuals regardless of their wealth, position, gender, age, race or religious belief.

The ALA is represented in every state and territory in Australia. More information about us is available

on our website.1

The ALA office is located on the land of the Gadigal people of the Eora Nation.

1 www.lawyersalliance.com.au.

Introduction

The ALA welcomes the opportunity to have input to the Community Affairs Legislation Committee (‘Committee’) on the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Bill 2024 (Cth) (‘Bill’).

ALA members represent National Disability Insurance Scheme (NDIS) participants across Australia, and the ALA supports substantial legislative reform in order to guarantee appropriate outcomes for all NDIS participants and the ongoing sustainability of the NDIS.

The ALA’s submission will address the following regarding this Bill:

a. the new definition of “NDIS support”;

b. the NDIS Rules relating to disability requirements and early intervention requirements;

c. requirements for the National Disability Insurance Agency (NDIA) CEO to provide notice to NDIS participants regarding the NDIA CEO’s access decision;

d. the circumstances in which the NDIA CEO must consider an NDIS participant’s status;

e. the new reasonable and necessary budget framework for the preparation of NDIS participants’ plans; and f. additional measures outlined in this Bill.

A New Definition Of “Ndis Support”

The ALA notes the new definition of “NDIS support” proposed by this Bill.2

While this appears to be a broad definition, the ALA submits that clarification should be sought from the Federal Government by this Committee as to:

a. whether this new definition is intended to limit the type of supports currently being provided to NDIS participants; and

b.

if so, which types of supports will be limited either through additional primary

legislation or – as the Explanatory Memorandum to this Bill implies – through the

NDIS Rules.3

NDIS Rules relating to disability requirements and early intervention requirements

  1. This Bill proposes amendments to section 27 of the National Disability Insurance Scheme Act

2013 (Cth) (‘NDIS Act’) such that the NDIS Rules could “make provision for determining any”

matter for the purposes of section 24 (disability requirements) or section 25 (early

intervention requirements).4

  1. ALA members are concerned that this would give the NDIA and the Federal Government the

ability to put in the NDIS Rules proscriptive criteria which would limit access to the NDIS.

  1. The ALA submits that this is too broad of a power that could result in overly prescriptive entry

requirements being enshrined through the NDIS Rules, instead of through primary legislation

which would attract the appropriate scrutiny that accompanies the passage of proposed

legislation through the Parliament of Australia.

  1. This is greatly concerning to ALA members for the effect this could have on NDIS participants’

access to the NDIS and adequate support.

  1. The ALA recommends that this power and the use of the NDIS Rules in this context should

be reviewed and that all final provisions should be included in this Bill, not in the NDIS Rules.

Written notice to NDIS participants regarding the NDIA CEO’s

access decision

11. Amendments to section 28(2) of the NDIS Act, as outlined in this Bill,$ detail a requirement

    that the NDIA CEO "must give written notice" to NDIS participants which must include

   whether each NDIS participant has entered the NDIS by meeting the disability requirements,
   the early intervention requirements, or both.

12. The ALA has no issue with clarity being provided as to which requirements NDIS participants

     satisfied such that the NDIA accepted them into the NDIS.

13. However, the ALA also notes:$

       The Bill will also clarify and expand the NDIS rules relating to access provisions, including the
       methods or criteria to be applied when making decisions about the disability and early
          intervention criteria and the matters which must or must not be taken into account.

14. ALA members are concerned that NDIS participants may be treated differently and restricted

   because they entered the NDIS through early intervention requirements, rather than through

   the disability requirements (or vice versa). The ALA contends that the Federal Government

  and the NDIA must treat all NDIS participants equally regardless of the requirements they

     satisfied to access the NDIS.

15. As such, the ALA submits that clarification should be sought from the Federal Government

  by this Committee as to whether the amendments proposed by the Bill and any subsequent

   expansion of the NDIS Rules will be used to treat NDIS participants who enter the NDIS

   through early intervention requirements differently to those who qualify for the NDIS

   through the disability requirements.

Circumstances in which the NDIA CEO must consider an NDIS participant’s status

16. This Bill proposes the addition of section 30A to the NDIS Act,$^7$ in order to allow the NDIA CEO

    to consider the status of an NDIS participant and to revoke a person’s status as an NDIS

    participant.

17. The ALA is concerned that the following elements will all be prescribed by the NDIS Rules:$^8$

  • the “circumstance” (or “circumstances”) which would require the NDIA CEO to review

           an NDIS participant’s status;

  • “requirements with which the CEO must comply”;

  • “criteria that the CEO is to apply”; and

  • “matters to which the CEO may, must or must not have regard” in making a decision

           under section 30A(1).

    18. We note that in other sections of the Bill and the NDIS Act,$^9$ details are provided as to what a

      relevant ‘circumstance’ is or what the relevant ‘circumstances’ are through the primary
   legislation, not through the NDIS Rules.

    19. Given that this significant power would be used to either include or exclude a person from the NDIS entirely, the ALA submits that:

          a.  clarification should be sought from the Federal Government by this Committee as
        to what “circumstances” are being contemplated for the purposes of the proposed
        section 30A(1); and

      b.  that all elements, criteria and circumstances relevant to the application of the
          proposed section 30A(1) and (2) must be outlined in the Bill, rather than through
           the NDIS Rules.

The new reasonable and necessary budget framework for the

preparation of NDIS participants’ plans

19. The additions of proposed sections 32K and 32L to the NDIS Act would change the way in

   which funding amounts are to be determined.10 These changes go to the very heart of the

   NDIS as they will dictate what supports are funded. Therefore, the ALA contends that close

    scrutiny of these provisions is required.

20. Proposed section 32K details that funding amounts be determined by applying a method set

   out in legislative instrument to the information contained in the newly proposed 'needs

    assessments', which are introduced through proposed section 32L.11 The ALA has several

   concerns about these changes.

21. First, these provisions arguably operate to circumvent the 'reasonable and necessary' criteria

    for funding set out in the NDIS Act at section 34(1) by delegating the substance of the funding

    decision to a subordinate legislative instrument, and to the needs assessment. At its worst,

     this power could be used to create restrictive lists of which supports will and will not be funded

   through the NDIS without oversight and scrutiny from the Parliament of Australia.

22. Secondly, these provisions could establish the needs assessment as the primary, or even sole,

    basis for determining funding. The ALA submits that this is inappropriate given the crucial

   nature of evidence from NDIS participants' treating practitioners, and from the NDIS

    participants and their families in determining needs and funding. This appears to be another

   attempt to introduce 'independent assessments' into the NDIS, which has previously been the

    subject of much criticism from the disability community.

23. Further, relying on the needs assessment to determine participant funding may narrow or

   undermine the ability of NDIS participants to seek external review of the funding decision. The

  ALA is concerned that the contents of the needs assessment itself will not be reviewable.

   While proposed section 32L(7) contemplates replacement assessments,12 the circumstances

   under which they will be required are not articulated, nor are any factors to which the CEO

   should have regard when making this decision. Further, the proposed changes to do not

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appear to contemplate that a decision made by the CEO pursuant to proposed section

32L(7)(c) will be reviewable.

  1. The quality and accuracy of the needs assessments could vary enormously but ALA members

are concerned that an NDIS participant could effectively be stuck with that outcome with no

avenue to review either the needs assessment itself nor the CEO’s decision to not arrange a

replacement assessment. This is a crucial issue, particularly given the funding method set out

in the legislative criteria could simply state that the NDIS will only fund supports set out in the

needs assessment.

  1. Finally, the wording of proposed section 32K(4) suggests that the Minister will have power to

determine a method for taking into account lump sum compensation, other than what is

currently used to determine the Compensation Recovery Amounts (CRA) as set out in the

National Disability Insurance Scheme (Supports for Participants – Accounting for

Compensation) Rules 2013 (Cth). If the Federal Government is contemplating changes to the

CRA and the associated Rules, the Federal Government should be explicit about this and

provide detail of how they wish to do so.

  1. The ALA urges the Committee to closely consider the proposed additions of sections 32K

and 32L since:

    a.  the provisions of these proposed sections could be used to restrict funding
      entitlements for NDIS participants through subordinate instruments, rather than
     through the NDIS Act; and

    b.  these proposed sections could also dilute or even remove the ability of NDIS
       participants to seek review of funding decisions.

Additional measures outlined in this proposed legislation

27.

The ALA notes that in the Bill there are additional “measures focused on protecting participants” which address matters including:13

  • how an NDIS participant must only spend amounts for NDIS supports in accordance with their plan; and
  • how the NDIA will be empowered to take precautions (such as imposing shorter funding periods) “to safeguard participants where others may seek to exploit or coerce the participant to use their package in a way that is not consistent with their best interests”.

28.

The ALA strongly supports any attempts to address and prevent fraud and other criminal conduct within the NDIS, including by dishonest service providers. The NDIS was designed to help vulnerable NDIS participants, and the ALA is disturbed by cases of rorting and fraud.

29.

In doing so, however, the ALA submits that the Federal Government and the NDIA must ensure that the NDIS is still accessible to NDIS participants and that NDIS participants are not punished (that is, the support and treatment those NDIS participants receive through the NDIS is not compromised or suspended) due to the dishonest or malicious actions of third parties.

30.

The ALA submits that clarification should be sought from the Federal Government by this Committee as to: a. why the powers the NDIA already has under the current legislative and regulatory framework to manage plans and budgets are not sufficient to address issues like fraud within the NDIS; b. whether the Federal Government and the NDIA intend for these new powers to be used narrowly and in exceptional circumstances (such as, in cases of fraud), or whether they are intended for broad use in the everyday management of the NDIS and NDIS participant plans; and c. how these new provisions and powers will interact with the flexible funding provisions of this Bill.

Conclusion

31. The Australian Lawyers Alliance (ALA) welcomes the opportunity to have input to the

Community Affairs Legislation Committee on the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Bill 2024 (Cth).

32. The ALA is available to provide further assistance to the Committee on the issues raised in this

submission.

Shaun Marcus Tom Ballantyne

National President, Chair, NDIS Special Interest Group

Australian Lawyers Alliance Australian Lawyers Alliance

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